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/ 09-Dec-2014 06:19

It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, ...and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, The often strident debate over the Second Amendment[2] is like few others in American constitutional discourse and historiography.Some of these questions are obvious and frequently asked, such as where to draw the line between an individual's right to possess arms and the corollary right to self-defense on the one hand, and the community's interest in public safety and crime control on the other.This argument, embodying the collective rights theory, sees the framers' primary, indeed sole, concern as one with the concentration of military power in the hands of the federal government, and the corresponding need to ensure a decentralized military establishment largely under state control.[10] Opponents of stricter gun controls have tended to stress the Amendment's second clause, arguing that the framers intended a militia of the whole--or at least the entire able-bodied white male--population, expected to perform its duties with privately owned weapons.[11] Advocates of this view also frequently urge that the Militia Clause should be read as an amplifying, rather than a qualifying, clause.

They argue that the framers also contemplated a right to individual and community protection.[13] This view embodies the individual rights theory.

This debate has raised often profound questions, but questions generally treated hastily, if at all, by the community of constitutional scholars.[14] For example, if one accepts the collective rights view of the Amendment, serious questions arise concerning whether the federal government's integration of the National Guard into the Army and, later, the Air Force have not in all but name destroyed the very institutional independence of the militia that is at the heart of what the collective rights theorists see as the framers' intentions.[15] Even the gun control debate is not completely resolved by an acceptance of the collective rights theory.

If, instead, the federal government has plenary power to define militia membership and chooses to confine such membership to the federally controlled National Guard, does the Second Amendment become a dead letter under the collective rights theory?

If the collective rights theory raises difficult questions, the individual rights theory raises perhaps even more difficult, and perhaps more interesting ones.

Waged in the popular press,[7] in the halls of Congress,[8] and increasingly in historical and legal journals,[9] two dominant interpretations have emerged.

Advocates of stricter gun controls have tended to stress the Amendment's Militia Clause, arguing that the purpose of the Amendment was to ensure that state militias would be maintained against potential federal encroachment.

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